FIRE Letter to Colorado College Board of Trustees Chairman David van Diest Skilling
May 16, 2008
May 16, 2008
David van Diest Skilling
119 Netas Court
Palm Desert, California 92260
Sent via U.S. Mail and Facsimile (760-773-6408; 719-389-6933)
Dear Mr. Skilling:
As you can see from our list of Directors and Board of Advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, due process, legal equality, voluntary association, freedom of speech, and religious liberty on America's college campuses. Our web page, www.thefire.org, will give you a greater sense of our identity and activities.
FIRE is deeply concerned about the violations of freedom of speech and due process that caused two Colorado College students to be declared guilty of "violence" for posting copies of a satirical flyer on campus. We ask you to urge President Celeste to remove this verdict from their student files. Not doing so has opened Colorado College to legal liability and has caused a great deal of public shame to the college.
This is our understanding of the facts. Please inform us if you believe we are in error. Sometime in 2008, an anonymous group calling themselves "the Feminist and Gender Studies Interns" produced an issue of a periodic flyer called "The Monthly Rag." The flyer included a reference to "male castration," an announcement about a lecture on "feminist porn" by a "world-famous prostitute and porn star," an explanation of "packing" (pretending to have a phallus), and a quotation from The Bitch Manifesto.
As a satirical response to "The Monthly Rag," in February, students [REDACTED] and Christopher Robinson posted a flyer called "The Monthly Bag" under the pseudonym "The Coalition of Some Dudes." The flyer included references to "chainsaw etiquette," the shooting range of a sniper rifle, a quotation regarding a sexual position from the website menshealth.com, and a quotation about "female violence and abuse [of men]" from the website www.batteredmen.com.
In response, President Richard Celeste sent a campus-wide email, stating that "The flyers include threatening and demeaning content, which is categorically unacceptable in this community... Vigorous debate is welcome. Anonymous acts meant to demean and intimidate others are not."
[REDACTED] and Robinson received notice on March 3 that the flyer "was allegedly interpreted by members of the campus community as an attempt to target certain campus populations with the intention of devaluing, intimidating, or even threatening harm." The letter threatened the two students with expulsion and charged them with violating various provisions of the Student Code of Conduct including "violence," "verbal abuse," "deception," "honesty," and other possible unnamed charges.
In addition, Ginger Morgan, Associate Dean of Students for Academic Support, sent a message to the Feminist and Gender Studies Student List on March 3, showing a strong predisposition to finding [REDACTED] and Robinson guilty:
There are several students (and maybe staff) the respondents will bring who can be expected to say "it was meant to be funny" "no harm done" "free speech/slippery slope" "the Monthly Rag is just as offensive" .... I am willing to serve as a complainant and come to the hearing.... I am willing to serve to coordinate the complainants....
A hearing was held by the Student Conduct Committee on March 10. Mike Edmonds, Vice President for Student Life/Dean of Students, found the students guilty of violence, writing on March 25:
I recognize that your intent in posting your publication was not to threaten but to parody. However, in the climate in which we find ourselves today, violence—or implied violence—of any kind cannot be tolerated on a college campus. I believe the issue here is not whether or not you intended to threaten anyone. The fact is that your publication was received as a threat.... [T]he juxtaposition of weaponry and sexuality, combined with the fact that ["The Monthly Bag"] was distributed anonymously, led it to be perceived as a threat.
Robinson appealed, and the final judge of the appeal was Edmonds himself. In a letter dated April 11, Edmonds notified Robinson that his appeal had failed. Although President Celeste had argued around April 1 that the students were "not sanctioned or punished," the letter clearly stated that the March 25 letter was a "discipline letter." The Student Code of Conduct in the Colorado College Pathfinder makes clear that having a letter placed in a student's file is an act of punishment.
President Celeste has steadfastly refused to reverse the punishment of the two students. Such punishments are morally reprehensible and may be legally actionable when they are applied in violation of due process or Colorado College's binding guarantees of the right to freedom of expression, which are quoted below.
Indeed, the punishment of the two students directly and unequivocally contradicts Colorado College's own policies and its advertised commitments to free expression. While Colorado College, as a private institution, is not directly bound by the First Amendment's requirement of freedom of speech, the university has a moral and contractual obligation to live up to its published promises to respect its students' freedoms.
Like many private universities, Colorado College has committed itself to the basic principle of freedom of expression. Colorado College's Diversity & Anti-Discrimination Policy states in no uncertain terms that "[f]reedom of thought and expression is essential to any institution of higher education." The meaning of this statement is subsequently explored at length:
On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful that it may not be expressed. Nothing in this Anti-Discrimination Policy should be construed to interfere with the academic freedom of all persons at the college to express and debate diverse ideas. Persons who object to the expression of certain ideas should generally counter with refutation, not demands for sanctions or disciplinary action against the person who has expressed the controversial ideas.
An equally strong commitment to freedom of expression is found in the College's Policy and Procedure for Protest and Dissent, which states:
Academic institutions exist for the transmission of knowledge, the quest for the transmission of knowledge, the quest for truth, the development of students, and the general well being of society. In the pursuit of these ends college community members have such basic rights as freedom of speech, freedom of press, freedom of peaceful assembly and association, freedom of personal beliefs, and freedom from personal force and violence, threats of violence, and personal abuse.
Given such a seemingly robust appreciation of the inherent academic and social value of freedom of expression, it is especially disheartening to find that the College's commitments ring hollow. A private institution that claims to cherish the right to free expression cannot, in good conscience, extend fewer rights and freedoms to its students than a public institution bound by the Constitution. Do students at Colorado College truly enjoy fewer protections of their expression than students at Colorado's community colleges? To restrict freedom of expression is to create a stifled and intellectually bereft environment—the very antithesis of what an institution like Colorado College claims to be.
"The Monthly Bag" is obviously an exercise in parody and satire, areas of political speech that are clearly and unambiguously protected under the First Amendment to the United States Constitution. Parody and satire exist to challenge, to amuse, and even to offend. In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), for ready example, the Supreme Court ruled that the First Amendment protects even the most outlandishly offensive parody—in that case, a cartoon suggesting that the Reverend Jerry Falwell lost his virginity in a drunken encounter with his mother in an outhouse. Highly offensive material is protected under the First Amendment and should likewise be protected on any campus that claims to protect its students' right to free expression. If speech of this nature is considered outside of the parameters of protected speech at Colorado College, then no expression is safe.
Also, when the standard for a punishable crime lies in the subjective feeling of the offended individuals, no expression is safe if it is in any way controversial. Even if it were true that some unreasonable persons on campus perceived the parody as a true threat, the fact remains that no reasonable person would have thought so.
We also note, in response to Celeste's campus-wide email, it is worth noting that the First Amendment protects anonymous speech. His email suggests yet another disappointing difference between the protections enjoyed by Colorado College students and those enjoyed by their counterparts at public colleges. The Supreme Court has ruled that "[t]he decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible...Accordingly, an author's decision to remain anonymous...is an aspect of freedom of speech protected by the First Amendment." McIntyre v. Ohio Elections Commission, 514 U.S. 334, 341-342 (1995).
Given the investigation and treatment of [REDACTED] and Robinson thus far, satirists now have more reason than ever to publish anonymously. The threat of being found guilty of harassment or worse, merely for publishing satire, has chilled speech at Colorado College. While this result may please some students and administrators, such action is fundamentally at odds with the school's stated values. It may sometimes be unpopular to stand up for speech that offends some part of the student body, but if universities are to survive as true marketplaces of ideas, they must have the courage to stand up for robust debate and discussion.
We have included signed waivers from both students with regard to their FERPA privacy rights. These waivers authorize you to discuss their case with FIRE.
FIRE is not a litigation organization, but we write you about this matter as an issue of justice, fairness, and principle. We include several published articles about this issue which make clear that the public, not to mention the Colorado College community, is generally outraged by the treatment and official punishment of Robinson and [REDACTED]. We hope to see this matter resolved with respect for the principles of freedom of speech. Again, we ask you to urge President Celeste to remove the guilty verdict from the students' files immediately.
We request a response by Friday, June 6, 2008. I look forward to hearing from you.
Director, Individual Rights Defense Program
Richard F. Celeste, President, Colorado College
Mike Edmonds, Vice President for Student Life/Dean of Students, Colorado College
Susan A. Ashley, Dean of the College, Colorado College